Bonner v. State , 38 Tex. Crim. 599 ( 1898 )

Appellants were convicted of willfully disturbing a congregation assembled for the transaction of business in relation to, and in the interest of, a Sunday-school, and conducting themselves in a lawful manner, etc., and the punishment of each assessed at a fine of $25; hence this appeal.

A motion was made by the Assistant Attorney-General to strike out the statement of facts in this case because the same was not filed within the time authorized by law. To this motion, appellants respond that they used due diligence to procure said statement of facts during the term, "and that the court informed him that he did not have time to see the county attorney, and ascertain whether or not he would agree to the statement of facts during the term; that said Lawther [appellants' attorney] then requested an order allowing him ten days after the end of the term within which to file said statement, and was told that same would be granted him; that said Lawther was never able, until the 10th day of May, 1897, to get said Force and Mays, county attorney, together, when the original statement of facts, as prepared by him and delivered to said Foree on April 23, 1897, was agreed to, with some little change; that said Lawther supposed that the court had given him the order for ten days, and never knew to the contrary until his attention was called to the that no such order had been made, by the motion of the Assistant Attorney-General." Was this due diligence? This involves the question of the duty of appellant with reference to seeing that the order allowing him ten days after the adjournment of court in which to prepare and file a statement of the facts was regularly entered on the minutes of the court by the clerk. If the affidavit of appellant or his counsel showed that the judge promised to superintend the making and entry of said order, then there might be some excuse for his failure to look after the matter himself. We think due diligence required of him to see that the judge made the order allowing him ten days, and that it was properly entered by the clerk. No ten-days order having been granted and entered, and no sufficient legal excuse being shown for a failure to have such order made and entered, we can not consider the statement of facts, which was filed after the term adjourned.

The only question remaining is with reference to the motion in arrest of judgment, which is predicated on the idea that the indictment returned into the Criminal District; Court of Dallas County was not properly transferred to the County Court of Dallas County. The exact point is made that the indictment is against "William Bonner, Andy Bonner, and Noah Duff, alias Noah Dove," whereas the certificate of the clerk to the order of transfer contains the names of defendants "Albert Bonner, Andy Bonner, and Noah Duff, alias Noah Dove" — the variance being between the names Albert and William Bonner; the real name of this defendant being William, and not Albert. If this motion had been made, in limine, to quash the indictment — or, more properly, it should have been made to the jurisdiction of the court — the State might have procured a proper certificate of transfer, covering the error, failing in which the court should have sustained the motion to the jurisdiction. See McDonald v. State, 7 Texas. Crim. App., 113; Brumley v. State, 11 Texas Crim. App., 114; Mitten v. State, 24 Texas Crim. App., 346. The motion in arrest of judgment came too late, the defendant having already pleaded to the judgment without objection. See Friedlander v. State, 7 Texas Crim. App., 204. The judgment is affirmed.

Affirmed.